Draft Amendment XXXIII to the Constitution of Macedonia – Protection of Marriage or Limitation of the Right to Private and Family Life?

With this letter, BABELNOR Network calls on the international community and ask for public reactions that would prevent the constitutional definition of marriage and civil unions exclusively as unions between one woman and one man

The Government of the Republic of Macedonia has proposed changes to the Constitution
including Amendment 33 which defines marriage and civil unions, but also any other
form of registered life partnership, exclusively as a union between one man and one
woman. Below is the text of Amendment 33 that regulates marriage, civil unions and any
other registered form of life partnership:

AMENDMENT XXXIII

1. Marriage shall be a life union solely of one woman and one man.
2. A civil union, or any other registered form of life partnership, shall be a life union
solely between one woman and one man.

On the 7th of July 2014, seven proposed constitutional amendments, including the
Amendment XXXIII that was meant to provide for a ‘clearer definition’ of marriage as a
union between one man and one woman entered into Parliamentary debate along with the
other proposed constitutional amendments. These amendments, however, contained only
the definition of marriage as a union between one man and one woman. The definition of
civil union as a union between one man and one woman was not included in the proposal
but was nonetheless included in the draft amendments, which was a flagrant violation of
the procedure for constitutional changes and an audacious abuse of the decision of the
Parliament to proceed with the originally proposed constitutional amendments. On the
27th of August 2014, the seven draft amendments were passed in national Parliament and
there, the proposed Amendment XXXIII contained definitions of civil unions, or any
other registered forms of life partnership as life unions solely between one woman and
one man.

Therefore, we are writing you to express our concerns regarding the draft constitutional
amendments in Macedonia which include the definition of marriage and civil unions
exclusively as unions between one man and one woman. We are deeply concerned about
LGBTI rights in Macedonia for there are numerous instances of human rights violations
and absence of effective protection and persecution by the state authorities. Therefore we believe that this change will only enhance discrimination, violence, and hate speech
toward the LGBTI community. The exclusive constitutional definition of marriage,
civil unions, and any other form of registered partnership is discriminatory toward
LGBTI people by restricting their right to family life and all the civil and social
rights arising from it.

The contemporary international jurisprudence has already taken a position on this issue.
In the case of Schalk and Kopf v. Austria (No. 30141/04, ECHR 2010), European Court
for Human Rights stated that the relationship of a cohabiting same-sex couple living in a
stable de facto partnership is falls into the category of ‘family life’, just as would be the
case with different-sex couples in a comparable situation. In the case Vallianatos and
others v. Greece (29381/09 and 32684/09), the court ruled that the legislative exclusion
of registered civil same-sex partnerships presents a violation of Article 14 (Prohibition of
discrimination) taken in conjunction with Article 8 (Right to respect for private and
family life). In its Opinion on the Fourth Amendment of the Fundamental Law
(Constitution) of Hungary, from 14-15 June 2013, the Venice Commission clearly stated
that a formulation with similar restrictions to family life was not aligned with Article 8 of
the European Convention on Human Rights, calling upon the reasoning provided in
Schalk and Kopf v. Austria (see above). In other words, the state is truly completely free
to define marriage as a form of union and the forming of a family (Art.12, ECHR), but as
soon as it begins granting other rights and privileges inherent to marriage to de-facto
partnerships that cannot be considered as ‘married’ under national laws (registered
partnerships), then and sexual orientation and gender identity of such individuals must
not be an obstacle to the exercise of those rights.

If this effort of the Macedonian Government gets voted by the national Parliament and
incorporated into the national Constitution, it will create precedence in European law on
restricting the right of family life through the use of Constitutional mechanisms. This
presents a danger to the development of human rights in Europe, because it is a model
that can easily be later applied in other national contexts. To be more specific, the
constitutional restriction of international human rights standards is not regulated equally
among states in Europe. Those countries that claim supremacy of domestic constitutional
law over international law can impose constitutional restrictions that are not aligned with
international human rights law and standards, and in the same time are superior in the national legal system. In return, this can make the reaction of the International
community much more difficult and much less fruitful.

We call for and encourage all our international friends, human rights and democracy
advocates to demand from the Macedonian Parliament, President and Government not to
support Amendment 33 of the constitutional changes. Also, we call for and encourage all
our partners to inform their respective Governments of the violations that this
Amendment can impose on the right to family life, and the consequences it can have in
other national contexts.